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Carter v. Pennsylvania Dep't of Corrections

December 17, 2008

NOAH CARTER
v.
PENNSYLVANIA DEPARTMENT OF CORRECTIONS, PENNSYLVANIA DEPARTMENT OF GENERAL SERVICES, PRISON HEALTH SERVICES, CORRECTIONAL: PHYSICIANS SERVICES, GOV. EDWARD RENDELL, JULIE KNAUER, DR. RALPH SMITH, DR. DENNIS IACCARRINO, DR. FELIPE ARIAS AND JOHN DOES



The opinion of the court was delivered by: O'neill, J.

MEMORANDUM

On January 22, 2008, plaintiff Noah Carter filed a pro se complaint against the Pennsylvania Department of Corrections (DOC), Pennsylvania Department of General Services (DGS), Prison Health Services (PHS), Correctional Physicians Services (CPS), Governor Edward Rendell, Julie Knauer, Dr. Ralph Smith, Dr. Dennis Iaccarino, Dr. Felipe Arias and John Does alleging that adequate medical treatment for his medical needs was denied and delayed. All defendants except Governor Rendell were sued in their official and individual capacities.*fn1 At the same time, plaintiff filed a motion for a temporary restraining order and preliminary injunction, appointment of counsel, appointment of a medical expert and initial discovery request dated January 22, 2008. On January 24, I ordered the Clerk of Court to attempt to appoint counsel for plaintiff and deferred all decisions on plaintiff's motions pending that appointment. On June 12, 2008, I denied plaintiff's motion to perfect service of complaint upon CPS and Julie Knauer with leave to renew upon appointment of counsel. On October 31, 2008, finding that at least two attorneys had declined to accept an appointment to represent the plaintiff, I vacated the Order with respect to appointment of counsel. Plaintiff chose to proceed pro se until such time as he could find counsel.

Plaintiff's claim under 42 U.S.C. § 1983 alleges that defendants violated his Eighth Amendment rights by delaying and denying adequate medical treatment of his "serious medical condition and needs." I have before me a motion to dismiss filed by the DOC, DGS, Rendell and Knauer and plaintiff's response thereto and a motion to dismiss filed by PHS, Arias, Iaccarino and Smith and plaintiff's response thereto. It appears from the record that CPS was not served.

BACKGROUND

Plaintiff is a prisoner currently housed in the State Correctional Institution - Graterford (SCI Graterford) while serving a sentence imposed by the Montgomery County Court of Common Pleas. Plaintiff has a history of severe lower back, spine and hip injuries. Between 1999 and 2000,*fn2 plaintiff was sent from SCI Graterford to Temple University Hospital for treatment on a tumor on his spine. Dr. Ayeesha Kamal, a Temple neurologist, prescribed a three-phase pre-surgery treatment plan to remove the tumor and to prevent, if possible, any serious damage to plaintiff's spine and began the phase one treatment of steroids. However, in 2000, defendants refused to pay Temple for the treatment so phase one treatment ended and plaintiff was not treated with the radiation and surgery as prescribed in phases two and three.

In 2001, despite medical orders from Smith and Iaccarino for a CT scan and an order from the Temple neurologist for an MRI, plaintiff alleges that defendants Julie Knauer, the now- retired corrections health care administrator, and Smith determined that for financial reasons the CT scans and MRI would not be conducted and instead ordered an x-ray and ultrasound.

At some point prior to February 5, 2007, plaintiff was transferred from SCI Graterford to SCI Fayette, located in the Western District of Pennsylvania. On February 6, 2007, he underwent surgery at the University of Pittsburgh Medical Center (UPMC) to remove the tumor. However, only part of the tumor could be removed because it was discovered that the tumor was now embedded in his spine. According to surgeon Dr. Walch of UPMC, had he removed the entire tumor plaintiff would have been paralyzed for the remainder of his life. After the surgery, Dr. Walch prescribed a course of treatment to include three weeks of in-house therapy at UPMC, radiation which was to begin in six weeks and follow-up surgery in six months to remove the remainder of the tumor from plaintiff's spine. On February 9, 2007, plaintiff began phase one therapy at UPMC, but claims that on February 11, 2007, Robert Turtanik, the SCI Fayette's Corrections Healthcare Administrator, informed him that treatment would be ended. Plaintiff alleges that defendants Rendell, DGS, DOC, PHS and CPS removed him from UPMC for financial reasons at that time and returned him to the SCI Fayette infirmary for therapy at the prison. Plaintiff alleges that he has not received any of the prescribed follow-up care at SCI Fayette or at SCI Graterford to which he was later transferred.

Plaintiff claims that an April 2007 angiogram of his spinal cord confirmed that the tumor is embedded in his spine and an MRI revealed the extent of the damage. During a consultation at UPMC, plaintiff alleges that Dr. Walch informed him that treatment could proceed no further because the medical risk was too high and PHS had limited the coverage to treat plaintiff. Plaintiff further alleges that he remains in excessive pain and has not received any medical treatment since his surgery in February 2007.

As a prisoner in defendant's care, plaintiff alleges that he has no other avenue available to seek needed medical treatment. Plaintiff also alleges that defendants' delay and denial of medical treatment resulted in his medical condition deteriorating to the point that the remainder of the tumor is now inoperable which plaintiff alleges will result in his being confined to a wheel chair for the rest of his life.

STANDARD OF REVIEW

Federal Rule of Civil Procedure 12(b)(6) permits a court to dismiss all or part of an action for "failure to state a claim upon which relief can be granted." Fed. R. Civ. P. 12(b)(6). In ruling on a 12(b)(6) motion, I must accept as true all well-pleaded allegations of fact, and any reasonable inferences that may be drawn therefrom, in plaintiff's complaint and must determine whether "under any reasonable reading of the pleadings, the plaintiff[] may be entitled to relief." Nami v. Fauver, 82 F.3d 63, 65 (3d Cir. 1996), citations omitted. Typically, "a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations," though plaintiffs' obligation to state the grounds of entitlement to relief "requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Bell Atl. Corp. v. Twombly, 127 S.Ct. 1955, 1964-65 (2007). "Factual allegations must be enough to raise a right to relief above the speculative level on the assumption that all of the allegations in the complaint are true (even if doubtful in fact)." Id., citations omitted. A well-pleaded complaint may proceed even if it appears "that recovery is very remote and unlikely." Scheuer v. Rhodes, 416 U.S. 232, 236 (1974). When considering a Rule 12(b)(6) motion, I do not "inquire whether the plaintiff[] will ultimately prevail, only whether [he is] entitled to offer evidence to support [his] claims." Nami, 82 F.3d at 65, citing Scheuer, 416 U.S. at 236.

Additionally, pleadings that are pro se must be held to "less stringent standards than formal pleadings drafted by lawyers." Dickerson v. Brooks, 2007 WL 4689001, at *2 (W.D. Pa.), citing Haines v. Kerner, 404 U.S. 519, 520-521 (1972); United States ex rel. Montgomery v. Bierley, 141 F.2d 552, 555 (3d Cir. 1969), noting that a petition prepared by a prisoner may be inartfully drawn and should be read "with a measure of tolerance." Pro se complaints, especially from civil rights plaintiffs, should be read liberally, as prisoners in particular are often at an informational disadvantage that may prevent them from pleading the full factual predicate for their claims. Alston v. Parker, 363 F.3d 229, 233-34 & n.6 (3d Cir. 2004). Under our liberal pleading rules, a district court should construe all allegations in a pro se complaint in favor of the complainant. Gibbs v. Roman, 116 F.3d 83 (3d Cir. 1997). Because this plaintiff is a pro se litigant, I will consider his allegations of fact and make inferences where it is necessary and appropriate.

DISCUSSION

Section 1983*fn3 provides an avenue for individuals to adjudicate violations of rights secured under federal constitutional or statutory law. Plaintiff argues that defendants violated his rights under the Universal Declaration of Human Rights*fn4 and the Eighth Amendment when they denied and delayed treatment of the tumor in his lower back. Defendants do not dispute that plaintiff exhausted his administrative remedies under the Prison Litigation Reform Act, 42 U.S.C. §1997e(a).

Plaintiff claims the right to a standard of living adequate for his health and well-being. Article 25 (1), Universal Declaration of Human Rights. As a prisoner, he claims that he should have access to the health services, medical care and treatment available without discrimination on the grounds of his status as a prisoner under the Basic Principles of for the Treatment of Prisoners, a resolution adopted by the United Nations General Assemble on December 14, 1990. He also claims that he is entitled to medical care and treatment whenever necessary, free of charge, and the right to request or petition a judicial or other authority for a second medical examination or opinion based on the Basic Principles. However, neither the Declaration nor the Basic Principles are a treaty or international agreement and they do "not of [their] own force impose obligations as a matter of international law." Stukes v. Knowles, 229 Fed. Appx. 151, 152 (3d. Cir. 2007), citing Sosa v. Alvarez-Machain, 542 U.S. 692, 734-35 (2004). Thus, the Declaration and the Basic Principles cannot support plaintiff's claims.

Defendants argue that plaintiff's remaining claim against DOC and DGS based on the Eighth Amendment protection against cruel and unusual punishment must be dismissed for failure to state a claim because they are protected by sovereign immunity under the Eleventh Amendment. Defendants argue that plaintiff's Eighth Amendment claim against Rendell and Knauer must be dismissed for failure to state a claim under the Eighth Amendment. Defendants further argue that plaintiff's Eighth Amendment claim against Knauer, ...


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